Buck v. McMinn

• Decision Date: 07 December 1927
• Docket Number: No. 25952.,25952.
• Parties: BUCK v. McMINN et al.
• Court: Missouri Supreme Court

300 S.W. 497

BUCK v. McMINN et al.

No. 25952.

Supreme Court of Missouri, Division No. 1.

December 7, 1927.

Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.

Action by John T. Buck against Arminta McMinn and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Leslie B. Hutchison, of Vienna, and W. D. Jones and Jones Bros., all of Rolla, for appellants.

John O. Holmes and A. B. Holmes, both of Rolla, for respondent.

ELLISON, C.

Action in two counts to determine title, and for partition. From a judgment for plaintiff on both counts, the defendants appeal.

The land involved is lots 11, 12, and 13, block 81, Bishop's second addition to the city of Rolla. The common source of title is Mary Burke, who died intestate March 29, 1899, leaving as her only heirs: (1) The plaintiff respondent, John T. Buck, sole child and heir of Belle Buck, a sister of Mary Burke, who had previously died in December, 1862; (2) and a brother, Robert McMinn, who subsequently died in January, 1924, leaving a widow and eight children, who are the defendants appellants.

Under the blood relationship between the parties, the respondent would be, as he asserts, the owner of an undivided one-half interest in the real estate in controversy, and the defendants of the remaining one-half. There is no dispute about that, but the appellants by their answer claimed the entire title in fee simple by adverse possession, pleading the 10-year statute of limitations and the 24-year statute of limitations. Sections 1305 and 1307, R. S. Mo. 1919. As to the second count of the petition—for partition—the appellants' answer further sets up a plea in bar, in which it is alleged that, at the institution of the respondent's suit, the defendants were in exclusive adverse possession of the land, and that they and their predecessor in title, Robert McMinn, had so been since the death of Mary Burke in 1899.

Both counts of the petition are in ordinary form, and the count for partition asks no accounting of rents received during the 24 years, and more of occupancy by the appellants and their predecessor in title, Robert McMinn. The answer asks no accounting for taxes paid or for improvements erected on the land during that time, and prays no affirmative relief. The facts bringing the case within the statutes of limitation are pleaded in the answer merely as a defense. No equitable relief is sought either in the petition or answer, and no equitable defenses are pleaded in the answer.

The respondent's reply denies that the appellants and their ancestors were in exclusive and hostile adverse possession of the land during the period mentioned, and charges that such possession as they had was as his cotenant; and further avers that Robert McMinn, the appellants' predecessor in title during that time, knew of the existence and whereabouts of the plaintiff and of his right to a half interest in the land as heir, but fraudulently concealed from him the death of Mary Burke, common ancestor and common source of title.

As has been stated, the court found the facts, and rendered judgment for the plaintiff on both counts of the petition. There are nine assignments of error in appellants' brief but they boil down to three: (1) That the court erred in refusing certain declarations of law requested by the appellants; (2) that, on the evidence introduced, the appellants conclusively established the fee-simple title in themselves by adverse possession under the 10 and 24 year statutes of limitations, and the trial court erred in holding to the contrary; (3) that, under the evidence, the appellants were in exclusive, adverse possession of the land at the time the action was instituted, and the respondent, being therefore out of possession was not entitled to maintain the partition suit set out in the second count of his petition, and the court erred in failing so to hold. This necessitates a review of the evidence. The facts in issue do not take a wide range. Indeed, it may be said there is little controversy about the facts. The dispute arises, rather, over the conclusions which should be drawn from them.

Let us first glance at the evidence offered to establish appellants' title by limitation. Mary Burke died in Phelps county on March 29, 1899, owning the property in dispute. The tract consisted of three lots on which was a small one-story cottage in which she lived. She left also some household furniture and a time certificate of deposit of $400 in the Rolla State Bank. Robert McMinn, her brother, took possession of her property, real and personal, immediately following her death. The bank refused to pay the time certificate without administration upon the estate, so, in July, 1900, some 15 months after Mary Burke's death, Robert McMinn filed an application for letters of administration in the probate court of Phelps county. In this application he alleged under oath mat he was her sole heir. Administration being granted, on the same day he filed his bond and oath as administrator, in the latter again stating he was sole heir.

There was some controversy at the trial below as to whether a notice of the granting of these letters was ever published. The plaintiff elicited from the probate judge testimony that there was no record in his office showing such publication. The purpose of this testimony appears to have been to raise an inference that Robert McMinn was seeking to suppress publicity concerning the administration but, as the plaintiff himself, in that part of his petition praying for partition, alleged the estate was duly administered, and as the trial court so decreed, we believe the essential step of publishing notice of the granting of letters should be considered as having been duly taken.

The administration proceeded in orderly course, and in July, 1902, Robert McMinn published notice of final settlement. The following month final settlement was filed by McMinn, together with an application for final distribution, in which he again represented himself to be sole heir. The order of distribution was made by the probate court, as prayed, and the whole estate, real and personal, ordered turned over to McMinn as sole distributee. The attorney who represented McMinn in the administration proceedings testified the latter frequently stated to him that he (McMinn) was sole heir of the intestate.

The appellant's evidence further showed that, upon the death of Mary Burke, Robert McMinn employed an agent to rent and look after the residence property; that the place was run down, and he cleared it of sprouts and brush, and took down the fence; that in about 1904 he put in about 185 feet of 4½ foot brick sidewalk on two sides of the lots at a cost of about $50; that in 1912 he paid a special assessment tax bill for street curbing and glittering, issued against the property in the name of Robert McMinn, as owner, amounting to $33.16; that in 1916 he practically tore down the cottage on the lots and built a new two-story five-room frame dwelling house thereon, at a cost of several hundred dollars; that he had city water piped into the property in 1921, the bill therefor being $74.84; that he took out in his own name, and paid the premiums on, fire insurance policies covering the premises for a number of years; that he paid the state, county, and other like taxes from 1899 to 1923; that he paid the city taxes from 1902 to 1923; that during those years the property was assessed in the name of Robert McMinn; that he collected, during all that time the rents from the property ranging from $5 to $20 per month. Most of the time the rent seems to have been about $9 per month. Part of the time the property was vacant. After the new house was built, apparently, the monthly rent was $15, and, after the city water was put in, $20. The deceased never lived in the property himself always renting it, and he complained of the cost of upkeep.

One of the appellants, John McMinn, a son of the deceased, Robert McMinn, testified that a good many years before the trial he heard his father say the plaintiff John T. Buck had gone away and never wrote, and that he must be dead. This witness further testified his father always claimed the property. Two or three other witnesses testified the deceased McMinn stated to them the property was his; the statement being made to some of them repeatedly. This fairly sums up the case made by appellants.

The evidence for respondent was not long. He testified he was born in Maries county in December, 1862. His mother, Belle Buck, a sister of Mary Burke, died 17 days after his birth, and for two years thereafter he lived with his maternal grandparents in Maries county. Thence his father took him to Morris, Ill., where the father had moved and remarried. Here the respondent has lived ever since. When he was 11 years old, in 1874, he came back to Missouri with his father for a visit. On this occasion he spent a few days with his relatives, that is to say, his grandparents, his aunt, Mary Burke, and his uncle, Robert McMinn. Again, in about 1877, when he was about 15 years old, he made a trip to Missouri with his father, and visited the same relatives. When he was about 20 years old, in 1884 or thereabouts, he made a third visit to this state, spending some 10 days with his grandmother (his grandfather had died in the meanwhile), his uncle's family, and his aunt Mary Burke. Shortly following this, after he had attained his majority, through correspondence, Robert McMinn had him sign a deed to some land in Pulaski or Maries county in which the family seems to have had an interest. McMinn was selling this land.

The respondent testified further that in about 1892 or 1893 he wrote his Uncle Robert several letters. He received no answer to the last two letters he sent, so he mailed a registered letter, which was never returned. The letters were properly addressed, and he fixed the years of writing them by the fact that it was...